in the high court of judicature at bombay · 2010. 5. 6. · hindu woman who is married after...
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* 1 * FCA-117/2006
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO. 117 OF 2006
Mangala Bhivaji Lad also known as Mangala Dhondiba AherAged about 59 years,Residing at 3/8, Municipal Quarters78, S.V. Road, Khar (West)Mumbai400 052 .........Appellant/
Original RespondentV E R SU S
Dhondiba Rambhau AherAged about 59 yearsResiding at 43/D1, NiwaraCoop Hsg.Society, 4 BungalowsAndheri (West),Mumbai ........Respondent/
Original Petitioner
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Mr. S.G. Gokhale, adv.for the appellant.
Mr. Chetan Akerkar, adv.for the respondent.
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CORAM : A.P. DESHPANDE, &
SMT. R.P. SONDURBALDOTA, JJ.
JUDGMENT RESERVED ON : 29 th March, 2010.
JUDGMENT PRONOUN CED ON : 3rd May, 2010.
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JUDGMENT ( PER : SMT. R.P. SONDURBALDOTA, J ) :
1. The vexed question of law that arises for consideration
in this appeal relates to right to claim maintenance of a
Hindu woman who is married after coming into force of the
Hindu Marriage Act, 1955 to a Hindu male having a legally
wedded wife.
2. The brief factual background against which the
question is required to be considered is as follows :
. In June, 1983 the appellant married the respondent at
which time he already had a lawfully wedded wife living.
The appellant and the respondent stayed together for a
period of 17 years before they separated on 21st December,
1999. Then, the respondent filed M.J. Petition No. B42 of
2000 in the Family Court, Mumbai for a declaration that his
marriage with the appellant is null and void and for an
injunction to restrain the appellant from representing herself
as his wife and from visiting his place of residence, as also
his work place. The appellant resisted the petition claiming
ignorance of the earlier marriage of the respondent. She
contended that since the marriage ceremony was duly
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performed with her and the marriage was registered with
the Registrar of Marriage, she is the legally wedded wife.
She also alleged that she was deceived into the marriage by
the respondent who had declared himself as a divorcee at
the time of registration of the marriage. Along with the
written statement, the appellant filed counterclaim praying
for provision of separate residence and permanent alimony.
She also sought permanent injunction to restrain the
respondent from disposing off certain properties and creating
third party rights over the same.
3. The Family Court by its judgment and decree dated
3rd August, 2006 partly allowed the petition of the respondent
and rejected the counterclaim of the appellant. The Family
Court found that marriage of the appellant with the
respondent had taken place during the subsistence of the
respondent s first marriage and consequently is void.’
However, it refused the declaration as sought by the
respondent that the marriage is void in view of Section 23(a)
and (d) of the Hindu Marriage Act 1955, on the ground that
by filing the petition for nullity of the marriage, the
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respondent wanted to take advantage of his own wrong.
Also there was unnecessary, unreasonable and improper
delay in instituting the petition. The Family Court, however,
restrained the appellant from visiting the respondent s place’
of residence and place of his work.
4. While considering the claim of the appellant for
maintenance, though the application filed therefor was under
Section 18 of the Hindu Adoption and Maintenance Act 1956,
the question framed by the Family court for consideration
was Whether the second wife can legally claim any“
maintenance amount under Section 25 of the Hindu
Marriage Act, 1955 or under Section 18 of the Hindu
Adoption and Maintenance Act. It then noted that the”
appellant was unable to cite any authority to justify the
claim of second wife and answered the question without any
further discussion stating that the legal position is almost“
settled that since the second marriage during subsistence of
first one is void, the second wife does not get any rights as
regards the maintenance. As a result, I hold that the
respondent being the second wife of the petitioner is not
* 5 * FCA-117/2006
entitled to any maintenance allowance. Thereafter, Family”
Court considered the appellant s claim on merit also and’
rejected the same holding that she has sufficient income for
her own maintenance.
5. When the present appeal was admitted on 12th
December 2006, its admission was limited to the claim of the
appellant for maintenance and to the order restraining the
appellant from visiting the respondent s place of residence’
and work. The submissions on the appeal are further
restricted to the claim of maintenance alone. No
submissions have been advanced by either side on the order
restraining the appellant from visiting the place of residence
and work of the respondent.
6. Mr. Gokhale, the learned counsel for the appellant has
made threefold submissions in order to assail the impugned
order. He has firstly contended that since the Family court
declined to declare the marriage of the appellant and the
respondent as null and void, the status of the appellant as
wife of the respondent cannot be said to be affected. In
that circumstance, according to him there can be no legal
* 6 * FCA-117/2006
impediment in the appellant claiming maintenance from the
respondent. Secondly, he submits that the term wife not“ ”
being defined anywhere, there cannot be a restrictive
meaning attached thereto, thereby depriving the appellant
of a right to claim maintenance, the provision for which is
enacted essentially for social justice and to protect women
and children. His third submission is based upon Section 23
of the Hindu Marriage Act. According to him, the narrow
interpretation of the provision of maintenance under Section
25 read with Section 24 of the Act, may render Section 23
ineffective.
7. The first contention advanced by Mr. Gokhale as
regards the status of the appellant need not detain us for
long as it is inconceivable in view of clear and specific
provisions of Section 5 and 11 of the Hindu Marriage Act.
Section 5 of the Act prescribes conditions for a Hindu
marriage. The first condition under clause (i) is that
neither party should have a spouse living at the time of the
marriage. Section 11 of the Hindu Marriage Act declares any
marriage solemnized after the commencement of the Act as
* 7 * FCA-117/2006
null and void if it contravenes any one of the conditions
specified in Clauses (i), (iv) and (v) of Section 5. Section 11
is seen to consist of two parts. The first part declares
marriages contravening the conditions specified in Clauses (i),
(iv) and (v) of Section 5 as null and void and the second
part provides that declaration of nullity of such marriage
may be given on a petition presented by either party to the
marriage. Therefore, on plain reading of Section 11 read
with Section 5 of the Act, it is abundantly clear that a
marriage contravening any of the three conditions
mentioned above becomes ipso jure null and void
irrespective of declaration to that effect by Court of Law.
In our view, we are supported by the decision of the
Hon ble Supreme Court in the case of’ Smt. Yamunabai
Anantrao Adhav V/S. Anantrao Shivram Adhav and
another reported in AIR 1988 S.C. page 644 wherein it is
held :
“The marriages covered by S.11 are void ipso jure,
that is, void from the very inception, and have to be
ignored as not existing in law at all if and when
such a question arises. Although the section permits
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a formal declaration to be made on the presentation
of a petition, it is not essential to obtain in advance
such a formal declaration from a court in a
proceeding specifically commenced from the
purpose.”
In the circumstances, we find no substance in the submission of
Mr. Gokhale that because the Family Court declined to grant
declaration to the respondent that the marriage is null and void,
the appellant by default holds the status of legally wedded wife.
8. The different provisions of law made to enable a
woman to claim maintenance are Section 25 read with
Section 24 of the Hindu Marriage Act, Section 18 of the
Hindu Adoption and Maintenance Act and Section 125
Criminal Procedure Code. Unlike the earlier two provisions,
the provision under the Criminal Procedure Code is wider
and available to any women irrespective of her religion.
The question of right of a woman whose marriage is null
and void (hereinafter referred to as the second wife for“ ”
the sake of convenience) to seek maintenance under Section
125 Criminal Procedure Code as also under Section 25 of
Hindu Marriage Act has already been settled by
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pronouncements of the Supreme Court which will be
referred to presently. However, no direct decision of the
Supreme Court on the right under Section 18 of Hindu
Adoption and Maintenance Act was brought to our notice by
either side.
9. Section 125 Criminal Procedure Code.The two decisions of the Apex Cour under this provision
are :1. Yamunabai s case’ (supra).
2. Savitaben Sonabhai Bhatia V/S. State of Gujarat &
Ors. reported in (2005) 3 S.C.C. page 636.
In Yamunabai’s case, after holding that the marriages covered by
Section 11 are void ipso jure, the Apex Court considered the
meaning to be given to the expression wife used in Section 125“ ”
of Criminal Procedure Code. It held that the expression must be
given the meaning in which it is understood in law applicable to
the parties. It was then sought to be argued on behalf of the
appellant before the Apex Court that the personal law of the
parties to a proceeding under Section 125 of the Code should be
completely excluded from consideration. While rejecting the
argument, the Apex Court observed :
* 10 * FCA-117/2006
The attempt to exclude altogether the“
personal law applicable to the parties from
consideration also has to be repelled. The
section has been enacted in the interest of a
wife, and one who intends to take benefit
under subsection (1)(a) has to establish the
necessary condition, namely, that she is the wife
of the person concerned. This issue can be
decided only by a reference to the law
applicable to the parties. It is only where an
applicant establishes her status or
relationship with reference to the personal law
that an application for maintenance can be
maintained.”
With the above observations, the Apex Court rejected the appeal
holding that the marriage of a woman in accordance with the
Hindu rites with a man having a living spouse is a complete
nullity in the eye of law and she is not entitled to the benefit of
Section 125 of the Code.
10. In it s subsequent decision in ’ Savitaben’s case (supra)
the Apex Court followed its decision in Yamunabai’s case in every
respect. It was additionally sought to be argued in that case that
a rigid interpretation given to the word wife goes against the“ ”
* 11 * FCA-117/2006
legislative intent of protecting destitute and harassed women and
also such interpretation operates harshly against the woman who
unwittingly gets into relationship with a married man. The Apex
Court dealt with the argument with following observations :
This may be an inadequacy in law, which only the“
legislature can undo. But as the position in law
stands presently there is no escape from the
conclusion that the expression 'wife' as per Section
125 of the Code refers to only legally married
wife.”
A N D
It may be noted at this juncture that the“
legislature considered it necessary to include within
the scope of the provision an illegitimate child but
it has not done so with respect to woman not
lawfully married. However, desirable it may be, as
contended by learned counsel for the appellant to
take note of the plight of the unfortunate woman,
the legislative intent being clearly reflected in
Section 125 of the Code, there is no scope for
enlarging its scope by introducing any artificial
definition to include woman not lawfully married
in the expression 'wife'.
11. Section 25 read with Section 24 of Hindu Marriage Act :
* 12 * FCA-117/2006
The legal position as regards right of the second wife to
claim maintenance under Section 25 of The Hindu Marriage
Act, is crystallized in the decision of the Apex Court in
Rameshchandra Daga V/S. Rameshwari Daga reported in
(2005) 2 S.C.C. page 33. In that case, the second wife had
filed proceedings for a decree of judicial separation and
maintenance for herself and her daughter. The husband
filed a counter petition seeking declaration of his marriage
to the appellant as a nullity on the ground that on the
date of the marriage with the appellant, her marriage with
the previous husband had not been dissolved by any court
in accordance with the provisions of the Act. The Family
Court had allowed the petition of the wife and granted in
her favour a decree of judicial separation and maintenance
and dismissed the counter petition of the husband. The
husband went in appeal to the High Court and the wife
preferred a crossobjection. The High Court held that the
first marriage of the wife with her previous husband
having not been dissolved by any decree of the court, her
second marriage was in contravention of Section 5(1) of the
* 13 * FCA-117/2006
Hindu Marriage Act and had to be declared as a nullity
under Section 11 of the Act. On the above finding, the High
Court granted decree of declaration of marriage as nullity in
favour of the husband and set aside the decree of
judicial separation, but, maintained the decree granting
maintenance to the wife and her daughter. In the
challenge to the order of maintenance before the Apex
Court, it was contended that where a marriage is
declared to be null and void by grant of decree, no order
awarding permanent alimony or maintenance can be made
in favour of the unsuccessful party under Section 25 of
the Act. While considering the contention, the Apex Court
held :
We have critically examined the provisions of“
Section 25 in the light of conflicting decisions of
the High Court cited before us. In our considered
opinion, as has been held by this Court in Chand
Dhawan's case (supra), the expression used in the
opening part of Section 25 enabling the Court
exercising jurisdiction under the Act' 'at the time of
passing any decree or at any time subsequent
thereto' to grant alimony or maintenance cannot be
restricted only to, as contended, decree of judicial
* 14 * FCA-117/2006
separation under Section 10 or divorce under
Section 13. When the legislature has used such
wide expression as 'at the time of passing of any
decree,'it encompasses within the expression all
kinds of decrees such as restitution of conjugal
rights under Section 9, judicial separation under
Section 10, declaring marriage as null and void
under Section 11, annulment of marriage as
voidable under Section 12 and Divorce under
Section 13.”
12. It was then argued that extending the benefit of
Section 25 to a second wife would defeat the object and
purpose of Section 11 to ban and discourage bigamous
marriages. The Apex Court rejected the argument
observing :
20.“ It is well known and recognized legal
position that customary Hindu Law like
Mohammedan Law permitted bigamous
marriages which were prevalent in all Hindu
families and more so in royal Hindu families. It
is only after the Hindu Law was codified by
enactments including the present Act that bar
against bigamous marriages was created by
Section 5(i) of the Act. Keeping into
* 15 * FCA-117/2006
consideration the present state of the statutory
Hindu Law, a bigamous marriage may be
declared illegal being in contravention of the
provisions of the Act but it cannot be said to be
immoral so as to deny even the right of alimony
or maintenance to a spouse financially weak and
economically dependant. It is with the purpose
of not rendering a financially dependant spouse
destitute that Section 25 enables the court to
award maintenance at the time of passing any
type of decree resulting in breach in a marriage
relationship.”
21. “ Section 25 is an enabling provision. It
empowers the Court in a matrimonial case to
consider facts and circumstances of the spouse
applying and decide whether or not to grant
permanent alimony or maintenance.”
On clarifying the position in law in above terms, the Apex Court
confirmed the order of grant of maintenance to the second wife
passed at the time of decree under Section 11 of the Hindu
Marriage Act.
13. Since while deciding Daga’s case, the Apex Court has
extensively relied upon it s decision in ’ Chand Dhawan V/S.
* 16 * FCA-117/2006
Jawaharlal Dhawan reported in (1993) S.C. page 406, we
consider it appropriate to refer to that decision at this place
so as to complete the discussion on the subject. Chand
Dhawan’s case arouse of a petition filed by wife simplicitor
for grant of maintenance under Section 25 of The Hindu
Marriage Act. In the appeal arising out of the said
proceedings, the question that fell for consideration of the
Apex Court was whether payment of alimony is admissible
without the relationship between the spouses being
terminated. The Apex Court while interpreting Section 25
held that Section 25 refers to any decree provided for under
Sections 9 to 14 of the Hindu Marriage Act affecting or
disrupting the marital status but does not include any order
dismissing the petition under any of those sections thereby
sustaining marital status. Hence, in the case of dismissal of
the petition under any of the provisions under Sections 9 to
14, no alimony can be granted to the wife petitioning under
Section 25. It has further observed that, however, without
affectation or disruption to the marital status, a wife can
claim maintenance under Section 18(1) of the Hindu
* 17 * FCA-117/2006
Adoption and Maintenance Act or under Section 125 Criminal
Procedure Code, whichever applicable.
14. Section 18 of The Hindu Adoption and Maintenance
Act :
The last provision available for maintenance is Section 18 of
The Hindu Adoption and Maintenance Act. The relevant
portion of Section 18 reads as follows :
18. “ Maintenance of wife
(1) Subject to the provisions of this section, a
Hindu wife, whether married before or after the
commencement of this Act, shall be entitled to
be maintained by her husband during her
lifetime.
(2) A Hindu wife shall be entitled to live
separately from her husband without forfeiting
her claim to maintenance
(a) to (c)................
(d) If he has any other wife living ;
(e) If he keeps a concubine in the same house
in which his wife is living or habitually resides
with a concubine elsewhere.”
15. There are two diametrically opposite decisions of two
different High Courts on the question of right of the second
* 18 * FCA-117/2006
wife to claim maintenance under this provision that are
relied upon by the parties. Mr. Gokhale relies upon the
decision of the Delhi High Court in the case of Smt.
Narinder Pal Kaur Chawla V/S. Manjit Singh Chawla
reported in AIR 2008 Delhi 7 whereas Mr. Akerkar, the
learned counsel for the respondent relies upon the decision
of Full Bench of Andhra Pradesh High Court in the case of
Abbayolla M. Subba Reddy V/S. Padmamma, reported in
AIR 1999 Andhra Pradesh 19. A glance at the decisions
would show that in both the matters the arguments
advanced on behalf of the second wife before the two“ ”
courts are almost same. The same arguments have also
been advanced before us. They can be enumerated as
follows :
(i). The Hindu Adoption and Maintenance Act does not
define expression Hindu wife . As section 18 of the Act“ ”
confers statutory right of maintenance on every wife, there
is no valid reason to restrict the application of such a wife
to a legally wedded wife.
(ii). Section 18(2)(d) says that a Hindu wife shall be“ ”
* 19 * FCA-117/2006
entitled to live separately from her husband without
forfeiting her claim for maintenance if he has any other wife
living. The provision will be applicable to a Hindu wife
whether married before or after the commencement of the
Act, as long as the husband has another wife living.
(iii). The Maintenance Act is a piece of beneficial and
social legislation intended for the benefit of women and
children and must be construed liberally. Therefore, even if
the marriage is void abinitio the second wife is entitled for
maintenance. .
(iv). Section 25 of the Hindu Marriage Act confers
jurisdiction on the court to grant permanent alimony and
maintenance to a wife or a husband at the time of passing
any decree under the Act and that even a woman whose
marriage is declared to be null and void under Section 11 of
the Act is entitled to get alimony and maintenance.
Therefore, it has to be inferred that the legislature intended
to confer statutory right of maintenance even in cases
where her marriage contravenes Section 5 of the Act and
hence is null and void.
* 20 * FCA-117/2006
16. Full Bench of Andhra Pradesh High Court rejected all
the above arguments to hold that the second wife is not
entitled to maintenance under Section 18 of the Hindu
Adoptions and Maintenance Act. Taking support from
Yamunabai’s case (supra) it held that marriage in
contravention of Section 5(i) of the Hindu Marriage Act is
void abinitio. The personal obligation of a Hindu husband
to maintain his wife and the right of a Hindu wife for
maintenance are incidents of the status of matrimony.
Therefore, unless the marriage is valid Hindu wife cannot
claim maintenance under Section 18 of the Act. The
expression any other wife in Clause (d) of Section 18(2)“ ”
means any other legally wedded wife i.e. where both the
marriages had taken place prior to the Hindu Marriage Act
coming into operation.
17. As regards the contention of the Maintenance Act
being a piece of beneficial legislation, Andhra Pradesh High
Court was of the opinion that the legislation cannot be
construed as conferring maintenance rights on a woman,
whose marriage is void, under the Hindu Marriage Act.
* 21 * FCA-117/2006
While a legislative enactment may be liberally construed, the
liberality cannot overstep the legislative limits of
interpretation putting into the legislation something which
is not there. If it is felt that a particular enactment causes
hardship and inconvenience, it is for the legislature to
redress it, but it is not for the court to ignore the legislative
injunction. As far as Section 25 of Hindu Marriage Act is
concerned, Andhra Pradesh High Court held that for a Hindu
wife or husband to make claim for maintenance under the
provision, there must be a matrimonial petition filed under
the Hindu Marriage Act and then on such a petition a
decree must be passed by the Court concerning the marital
status of the wife or husband. Thus the whole exercise is
within the gamut of a broken marriage. But where the
question of nullity is in issue and is contentious, the court
had to proceed on the assumption until the contrary is
proved that the applicant is the wife. It is in that sense,
Section 25 should be appreciated. Both the statutes i.e the
Hindu Marriage Act and Hindu Adoption and Maintenance
Act are codified laws on the respective subjects and by
* 22 * FCA-117/2006
liberality of interpretation, interchangeability cannot be
permitted so as to destroy the distinction on the subject of
maintenance.
18. Division Bench of Delhi High Court has taken a
different view on the question and granted maintenance to
the second wife on an application filed under Section 18.
According to Delhi High Court, a Hindu husband is estoped
from challenging validity of the second marriage in view of
the wrong committed by him in not disclosing to the second
wife the factum of his first marriage, otherwise it would
amount to giving premium to the husband for defrauding
the second wife. It was of the opinion that the legislature
never intended that a woman who is in the position of a
second wife, be not treated as the wife atleast for the“ ”
purposes of Section 18 of the Act and be deprived of her
right to seek maintenance. The Delhi High Court drew
distinction between the claim of maintenance under Section
125 CrPC and Section 18 of the Act in order to distinguish
the decision of the Apex Court in the case of Savitaben.
19. As regards Section 18(2)(d), the interpretation placed by
* 23 * FCA-117/2006
the Delhi High Court thereupon, was that in the absence of
definition of expression Hindu wife , the same must be“ ”
interpreted in the spirit in which it appears in Section 18 of
the Act without taking any external aid as Section 4 of the
Act gives an overriding effect to it. It then observed as
follows :
This Act was brought into force in the year“
1956. As on that date Hindu Marriage Act, 1955
was already in force, which contains provision
like Section 5 regarding void marriages. If
second wife , though her marriage is void“ ”
under the Hindu Marriage Act, was to be
denied maintenance, then the legislature would
not have included provision like clause (d) in
subsection (2) of Section 18 of the Act or
would have clarified that this clause was added
only to take care of those second marriages
performed before the Hindu Marriage Act, 1955
was enacted when polygamy was permissible
for male Hindus.”
The Delhi High Court discussed use of expression concubine in“ ”
Clause (e) of subsection (2) of Section 18 of the Act to observe
that the legislature has carved out a distinction between second“
* 24 * FCA-117/2006
wife and concubine and that the expression Hindu wife and” “ ” “ ”
wife are definitely to be placed on a higher pedestal than“ ”
concubine .“ ”
20. Finally the Delhi High Court felt that when Law s terms are’
inadequate and lead to loose ends, the court can rely on it s’
inherent powers to do justice. It observes at para40 that :
Strictly, the statutory entitlement of the Court“
may not apply but having the recognised right
and necessity to enforce it, the Court can, in
exercise of its inherent powers reach out justice
by giving remedial and such salutary reliefs.
Justice after all is another name of fairness. It
cannot be blind to the facts in a given case and
should reach out in its mercy those results which
would be necessary to avoid ruinous
consequences like economic or moral destitution.
Ultimately, having based the relief on Sec. 151 of
the C. P. C. with the aid of inherent powers and
drawing upon the principles underlying Sec. 25 of
the Hindu Marriage Act, it is implicit that before
maintenance is granted, the need to grant such
must exist as well as the grantee must fulfill the
ordinary conditions like that of chastity, not being
married to any other person and further of not
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being in a position to maintain herself. ”
(Emphasis supplied)
It is thus seen that after the extensive discussion on the statutory
provisions, the Delhi High Court founded it s order not on the’
provision of Section 18 of the Hindu Adoption and Maintenance
Act, but, on the inherent powers of the Court under Section 151
CPC. With respect we do not agree with such a course of action
because it is well established that the inherent powers are required
to be exercised by the court only in the absence of statutory
provisions and not to circumvent a statutory provision. Besides,
inherent power of Section 151 CPC is only a source of power to
the court to make such order as may be necessary for the ends of
justice or to prevent abuse of the process of the court. It cannot
be a source of right to claim maintenance. In the circumstance, in
our opinion, the decision of the Delhi High Court does not really
help the appellant in her contention that the second wife is
entitled to claim maintenance under Section 18.
21. In any case, we are unable to persuade ourselves to
agree with the discussion on the position in law on the
question contained in the Delhi High Court decision though
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one may want to agree with the sentiments expressed
therein on the conduct of the husband in entering into the
second marriage during the subsistence of the first marriage
by keeping the second wife in dark about the first marriage.
It must be clarified at this stage that in the case on hand,
there is a finding of fact of the Family Court supported by
the evidence on record that the appellant married the
respondent with full knowledge that he was already
married and that his first wife is living. In the
circumstances, the appellant cannot lay any claim to
sympathy on that count. The decision of the Andhra
Pradesh High Court on the other hand, in our considered
opinion, espouses the correct position in law on the subject.
22. We have already seen that it is well settled position in
law that a marriage contravening Section 5(i) of the Hindu
Marriage Act is void ipso jure and the woman entering into
such a marriage is not wife within the meaning of either“ ”
the Hindu Marriage Act or Section 125 Criminal Procedure
Code. The expression wife used in both the statutes“ ”
means only a legally wedded wife. The Hindu Adoption and
* 27 * FCA-117/2006
Maintenance Act cannot be treated differently for the
meaning to the expression wife used therein. The“ ”
expression must be given the meaning in which it is
understood in the law applicable to the parties. Since the
institution of marriage and the very relationship of husband
and wife originates from the personal law applicable to the
parties, there can be no escape from reference to the
personal law while understanding the expressions husband“ ”
and wife used in different statutes. As far as Hindus are“ ”
concerned, the law relating to marriage amongst Hindus is
codified by Hindu Marriage Act and therefore unless the
marriage is valid under the provisions of the Hindu Marriage
Act the parties entering into such a marriage cannot
describe themselves as husband and wife for the“ ” “ ”
purposes of application of different statutes or for deriving
the benefits available under different statutes.
23. As regards the argument based on Section 18(2)(d) of
Hindu Adoption and Maintenance Act is concerned, we are
inclined to agree with the view expressed by the Andhra
Pradesh High Court, which has held that the ground laid
* 28 * FCA-117/2006
down under the provision can obviously exist only in case of
marriages solemnized before the Hindu Marriage Act came
into operation. Had the Hindu Marriage Act not laid down
monogamy as a rule of law and that Hindu husband cannot
marry another wife after the commencement of that Act, the
Clause (d) enabling a wife to be entitled for separate
residence without forfeiting her claim to maintenance if her
husband has any other wife living, could not have been
included under Section 18. Further, a bigamous marriage
contracted after coming into force of the Hindu Marriage Act
being null and void, question of having another wife cannot
arise after the Hindu Marriage Act came into operation.
Therefore, it can be applicable only in cases where a
husband has entered into two marriages prior to coming
into operation of the Hindu Marriage Act.
24. Mr. Gokhale, then sought to argue that if the
expression wife is to mean only legally wedded wife, it“ ”
would render Section 23 of the Hindu Marriage Act
ineffective. According to him, the interpretation would take
away the discretion provided to the court under Section 23
* 29 * FCA-117/2006
to grant reliefs under the Hindu Marriage Act. We have
already seen above that the application filed by the
appellant herein before the Family Court was under Section
18 of Hindu Adoption and Maintenance Act and not under
Section 25 of the Hindu Marriage Act. Further, the position
as regards the meaning to be given to the expression wife“ ”
has already been settled by the pronouncement of the
decision of the Apex Court in Daga s case’ . In that
circumstance, there is no question of this Court considering
the impact of the meaning upon Section 23.
25. It has next been argued by Mr. Gokhale, that in view
of Section 4 of the Hindu Adoption and Maintenance Act,
1956 giving an overriding effect to the Act, the provision of
Section 5 read with Section 11 of the Hindu Marriage Act
cannot have any bearing upon any matter for which
provision is made under this Act. The argument probably
would have been valid, had the Hindu Adoption and
Maintenance Act, 1957 provided for a specific definition of
the expression Hindu wife and which definition was in“ ”
some way inconsistent with the provisions of the Hindu
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Marriage Act. That being not the position, effect of Section
4 cannot be pressed in service.
26. Lastly, Mr. Gokhale refers to two decision of co
ordinate Benches of our court in the case of Prabhubhai
Ranchhodbhai Tailor V/S. Mrs. Bhartiben Prabhubhai
Tailor reported in 2004 (3) Mh.L.J. page 487 and in the
case of Smt. Reeta Bharat Arora V/S. Bharat
Yasodanandan Arora @ Dhingra & Ors. reported in I
(2002) DMC 136 (DB), wherein this court granted application
of second wife for maintenance. He submits that there
being earlier judgments of coordinate Benches holding a
particular view, that view will have a binding effect on the
later Bench of coordinate jurisdiction and the Apex Court in
its decision in the case of State of Bihar V/S. Kalika Kuer
@ Kalika Singh and Ors. reported in AIR 2003 S.C. 2443
has disapproved the later Bench ignoring the decision on the
ground of it being perincuriam. He submits that in such a
situation, there are only two ways of resolving the matter,
either to follow the earlier decision or refer the matter to
larger Bench to examine the issue, in case, it is felt that
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earlier decision is not correct on merits.
27. The first decision cited of Prabhubhai Tailor s case’
(supra) is completely different on facts. In that case, the
application for maintenance filed under Section 25 of the
Hindu Marriage Act was for consideration of the Court.
Although on the date of the second marriage, the first
marriage of the husband was subsisting, within two years
thereafter, the first marriage had come to an end by way of
divorce. In that circumstance, it was held that even though
the second marriage of the husband during the subsistence
of the first marriage was null and void, on dissolution of the
first marriage, if the parties to the second marriage
continued to live together as husband and wife, there was
no impediment in conferring the status of wife to the“ ”
second wife. This would mean that the second wife had
assumed the status of legally wedded wife on the date she
applied for maintenance. Similarly, in the second decision
cited in Reeta Arora s case’ (supra) also, the Family Court
had held that Reeta s marriage with her husband which was’
his second marriage, in the facts of that case, was a valid
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marriage and as such Reeta was treated as wife meaning“ ”
legally wedded wife for her application under Section 18 of
the Hindu Adoption and Maintenance Act. Thus the orders
granting maintenance in the two cases had been passed in
the face of peculiar facts and circumstances of the respective
cases. There is no ratio laid down in either of the cases
that an application for maintenance filed by the second wife
under Section 18 of the Hindu Adoption and Maintenance
Act, is maintainable.
28. We therefore fully agree with the view expressed by
the Andhra Pradesh High Court that the expression Hindu“
wife used in Section 18 of the Hindu Adoption and”
Maintenance Act, means legally wedded Hindu wife and no
less. The appellant not being the legally wedded wife of the
respondent cannot resort to Section 18 of the Hindu
Adoption and Maintenance Act to claim maintenance. We
may also mention here that it has been the observation of
the Family Court in the impugned judgment and order that
the appellant has sufficient source of livelihood consisting of
service pension, the retirement dues as also her income from
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playing roles in T.V. serials. In the above circumstances, we
dismiss the appeal with costs.
[SMT. R.P. SONDURBALDOTA, J] [A.P. DESHPANDE, J]